Necessity in International Law

Law › International Law

Necessity in International Law

Edited by Jens David Ohlin · Larry May
Oxford University Press October 2016

Specifications

ISBN-13
9780190622930
Publisher
Oxford University Press
Publication
October 2016
Format
Hardback
Jurisdiction
International ? Countri(es) for reference only

Details

This book traces the various uses of the concept of necessity in international law, with the goal of determining whether there is any over-arching unity to these uses across the sub-disciplines of international law. The authors not only discuss necessity in international humanitarian law (IHL) and jus in bello, but also aim to situate necessity as understood in IHL within a larger discourse of international law generally. They untangle the confusing and often inconsistent usages of the term "necessity" in these broad areas of international law, including human rights law. The authors argue that necessity in international law has three different conceptions that cut across the various domains: necessity as exception, necessity as license, and necessity as regulation. In this book, the authors describe how these conceptions differ, and analyze them from a normative standpoint, arguing that necessity by exception requires principled restrictions (as found in international criminal law). They go on to explore necessity as a license in IHL, and offer an articulate and workable standard for its curtailment. Further, the authors' methodology is to interrogate the basic theoretical structure of the law through philosophical investigations, including the analysis of historical and contemporary "Just War Theory," and to determine whether the law ought to be revised or not.

Table of Contents

Acknowledgments
Introduction
I. Three Kinds of Necessity: Exception, License, and Constraint
II. A Roadmap
III. Normative Prescriptions
Part A. Necessity & Jus Ad Bellum
Ch.1. Necessity and the Principle of Last Resort in Just War Theory
I. Defining Aggression in the Just War Tradition
II. Gentili and the Justification of Offensive War
III. Grotius on Fear of Attack
IV. The Grotian Principles of Last Resort and Ad Bellum Necessity
V. Last Resort as the Ultimate Restraint
VI. Equally Efficacious Means
Ch.2. Necessity and the Use of Force in International Law
I. Necessity and Customary Treaty Law
II. Necessity in Investor-State Relations
III. Necessity in Jus ad Bellum Violations
IV. Necessity as a Component of Self-Defense
V. Conclusion
Part B. Necessity & Jus in Bello
Ch.3. Necessity and Discrimination in Just War Theory
I. Necessity and Discrimination in Early Modern Just War Theory
II. Necessity and Humane Treatment
III. Luck and Necessity
IV. Military Necessity as a Form of Practical Necessity
V. Relating Jus In Bello Proportionality and Necessity
Ch.4. The Foundations of Necessity in IHL
I. The ICRC and Necessity
II. Lieber's Conception of Necessity
III. Necessity in the Nuremberg Tribunals
IV. What's Right and What's Wrong with Lieber's Necessity
V. Conclusion
Ch.5. Necessity in Human Rights Law and IHL
I. Human Rights Necessity
II. Combining Human Rights Necessity with IHL Necessity
III. Conclusions
Ch.6. Necessity in Criminal Law
I. Necessity in Domestic Criminal Law
I. No Constraints on the Necessity Defense
III. Ad Hoc Constraints
IV. Principled Constraints
V. Conclusion
Ch.7. Striking a Balance Between Humanity and Necessity
I. Humanity
II. Humanitarianism and Human Dignity
III. Humane Treatment
IV. Dignity and Vulnerability
V. Humanitarian Rights
VI. Concluding Thoughts on the Principles of Humanity and Necessity
Part C. Applying Necessity to Contemporary Conflicts
Ch. 8. Combatants and Civilians in Asymmetric Wars
I. Pirates and Insurgents at War
II. Grotius on Non-State Actors in War
III. Jus Ad Bellum Issues
IV. Jus In Bello Issues
V. Civil Wars and Civilians
Ch. 9. Disabling vs. Killing in War
I. Specific Prohibitions versus General Duties
II. The Hors de Combat Argument
III. Least Harmful Means Test at the Geneva Negotiations
IV. Should Jus in Bello Require Disabling before Killing?
VI. Necessity and Killing Fleeing Soldiers
Ch. 10. The Duty to Capture
I. Is Capture Required by Jus in Bello Necessity?
II. Are Different Rules for Civilians and Combatants Morally Legitimate?
III. Capture as a Requirement of Constitutional Necessity
IV. The Moral Arguments for a Duty to Capture
Ch. 11. Force Protection
I. Understanding Force Protection
II. Jus ad Bellum Necessity and Force Protection
III. Jus in Bello Necessity and Force Protection
IV. The Hannibal Procedure
V. Reasonable Force Protection
Conclusion
Index

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